FOIA audit: Kanawha, Putnam not number 1'

Kanawha and Putnam counties responded well to a recent statewide audit that tested the state's open-records law for four county offices, but they didn't fare as well as some county leaders would have liked.

Kanawha County's score suffered because Sheriff David Tucker's office did not respond to a records request.

Officials in both counties' sheriff's department, clerk's office, commission office and school superintendent's office were asked to release information available to the public under the state's public-records law.

Most of the offices released the information without problems, but others demanded a reason for the request, which state law protects citizens from being forced to provide.

Passed in 1977, West Virginia's Freedom of Information Act assures state residents "full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees." The October audit was a test of how well counties abide by that law.

Putnam County fared better than neighboring Kanawha by finishing fourth overall in the study's ratings with 20 out of a possible 24 points. Kanawha County finished in a six-way tie for sixth place with 16 points.

Putnam County Commissioner Jim Caruthers said he is pleased but that there is always room for improvement.

Putnam officials, in most cases, handed the requested information over on the first request. The Sheriff's Department denied an initial request for information because a department supervisor wasn't available. The second request was granted.

In Kanawha County, the county clerk, County Commission and schools superintendent turned over records after the first request, without requiring a formal FOIA letter. The clerk asked for identification and a reason for the request. The commission and superintendent did not ask for identification, but did want to know why the documents were being requested.

The Sheriff's Department, however, did not release its incident report log.

The agency also did not respond to a written FOIA letter asking for the log. Under state law, government agencies must respond to FOIA requests in writing within five days, even if they plan to reject the request.

Cpl. Jess Bailes, Kanawha sheriff's spokesman, said sheriff's offices have different, more sensitive information and have more exceptions than other offices.

Bailes said open criminal investigations are not subject to the law, but portions of closed cases are.

According to the state Supreme Court, Bailes is wrong. In 1994, the court ruled that incident reports - even those involving open cases - are public records that must be released.

"Police incident reports - those that detail the nature of the call responded to, and the disposition of those calls - are public records as long as those records do not compromise an ongoing investigation," wrote Terry Wimmer, a West Virginia University journalism professor and coordinator of the public-records audit for the West Virginia Associated Press Managing Editors Association.

"The burden of proof is on sheriffs to show not only that the report is part of an investigation, but its revelation would compromise that investigation," Wimmer wrote in a report on the audit.

During the audit, sheriffs across the state were asked to release "incident reports" or a similar document that provides - in this case - a week's history of calls the department responded to and the disposition of those calls.

Kanawha County Metro 911 Director Carolyn Charnock said her office has a record of when emergency calls come in, when it is dispatched, and when the call is completed. Some agencies have codes for incidents, but otherwise, deputies record details of calls.

"We treat incident reports and criminal-investigation reports with a lot of care. We don't want to hinder the public in any way by releasing the wrong information," Bailes said. "If we are required by FOIA to release something, we are going to release it. But we don't let anyone just walk in off the street and look at our files."

Charleston lawyer John Teare, who represents the Sheriff's Department, said he was given the request by sheriff's officials but has not replied to it in writing.

"I'm disappointed that we're not number one. I would say boldly that our county commission is unmatched in this," said Kanawha County Commissioner Kent Carper. "If everyone's office followed the lead of the County Commission, we would all be number one in this."

Another difference between Kanawha and Putnam counties was a charge of 88 cents for copies of Kanawha expense reports from the clerk's office. Carper said he stood by the charge because someone could request a huge number of documents, which would be expensive to county taxpayers.